Concept of attempt and inchoate crime under IPC

Abstract
The criminal law punishes not only completed crimes but also short of completion of crimes. An
attempt creates alarm which of itself is an injury, and the moral guilt of the offender is the
same as though he had succeeded. The act may be sufficiently harmful to society by reason of
its close proximity to the completed offence classed as a crime.

It is of the belief that the offences that the individual wishes to commit is of such grievous
nature that in case of failure to commit the said crime, it is in the public interest to prosecute
the acts done in pursuance of the crime

Objective: The paper attempts to decode the reason and rationale behind prosecuting a person
for an attempt to commit a crime and deals with the attempt as an inchoate offence under the
Indian penal code.

Research methodology: Analytical approach has been adopted for the research as analytical
approach stands applicable in all stages of research, right from the articulation to the
formulation of arguments on the issues mentioned in the research. This paper is the outcome
of a secondary data related to criminal law with special reference to Indian context.

Concept of Attempt :

An attempt to commit a crime is essentially a direct movement towards the commission of the
contemplated offence after preparations are made.1 ‘An attempt to commit a crime’, observed
Sir James Stephen, ‘is an act done with intent to commit that crime, and forming part of a series
of acts which would constitute its actual commission if it were not interrupted. It is an act which
a person does towards the commission of the offence, the commission of the offence being
hindered by circumstances beyond his control. The IPC has not defined the term attempt.
The Supreme Court, in Koppula Venkat Rao v State of Andhra Pradesh,2 observed:

The word ‘attempt’ is not defined, and must, therefore, be taken in its ordinary meaning….. An attempt
to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the
offence, unless something which the doer of the act neither foresaw nor intended, happens to prevent
this. An attempt may be described to be an act done in part execution of a criminal design, amounting to
more than mere preparation, but failing short of actual consummation, and, possessing, except for
failure to consummate, all the elements of the substantive crime.

1
P S A Pillai, Criminal Law, 11th Edn., p.178
2
AIR 2004 SC 1874
 Concept of attempt and inchoate crime under IPC

There are three essentials of the offence of attempt to commit an offence that are required to
be proved by the prosecution to secure conviction of the perpetrator. They are:

Firstly, he had an intention or mens rea to commit the contemplated or intended offence,
Secondly, he has done some act or taken a step forward towards the commission of the
contemplated offence,
Thirdly, he, for reasons beyond his contemplation or control, failed to commit the intended
offence.3
An attempt to commit an offence, thus, can be said to begin when the preparations are
complete and the doer commences to do something with the intention of committing the
desired offence and which is a step towards the commission of the offence. The moment he,
after making necessary preparations, commences to do an act with the necessary intention, he
commences his attempt to commit the offence. Such an act need not be the penultimate act
towards the commission of the offence.

The Supreme Court observed that an attempt to define the term attempt is a futile exercise.
The attempt stage is reached when the culprit takes deliberate overt steps to commit the
offence and this overt act need not be penultimate act.4
Conduct which is merely preparatory to the commission of an offence is not generally an
offence. However, mere preparation to commit an offence is criminal if it amounts to one of a
number of preparatory offences.

Preparation and Attempt – A thin line

On occasions more than one, courts in India have stressed that there is a thin line between the
preparation for, and an attempt to commit, an offence.5 It is also difficult to distinguish
between the two. But such a task is crucial as, ordinarily, preparations to commit an offence do
not attract criminal liability. A doer becomes liable once he enters into the arena of attempt.
The difference is starkly illustrated in R v Riasat Ali6, in which the Calcutta High Court
considered the case where the prisoner had given an order to print 100 forms similar to those
formerly used by Bengal Coal Company. The first proof of the forms was also corrected by the
accused. At about the stage when the accused was to have made the final corrections and
alteration to the printed form to make them appear exactly like the originals, he was arrested
and charged with attempting to make a false document under section 464, IPC. However, the
court held him to be not guilty as the attempt could be said to have been completed only after
the seal or the signature of the company had been affixed. Consequently, the act done was not
an act towards making one of the forms of false documents, but if the prisoner had been

3
Abhayanand Mishra v State of Bihar AIR 1961 SC 1698
4
State of Maharashtra v. Mohd. Yakub,(1980) 3 SCC 5.
5
Abhayanand Mishra v State of Bihar AIR 1961 SC 1698
6
(1881) ILR 7 Cal 352
 Concept of attempt and inchoate crime under IPC

caught in the act of writing the name of the company on the printed form and had completed a
single letter of the name, then, in the words of Lord Blackburn, ‘the actual transaction would
have commenced which would have ended in the crime of forgery and he would have been
guilty of the attempt to commit forgery.

Tests to distinguish Preparation and Attempt-

It is debatable as to when preparation has ended and the actual attempt has begun. An
important question that has baffled jurists and judges from time to time is how to draw a
dividing line between the act of preparation and that of an attempt to commit a crime. Various
tests or principles have been developed and employed by courts in India for distinguishing an
attempt to commit an offence from preparation made therefore. A few prominent among these
are- (1) the Proximity Rule, (2) Doctrine of Locus Poenitentiae, (3) Equivocality Test, and (4)
Impossibility Test.7

The Proximity Rule-

The act or a series of acts, in order to be designated as an attempt to commit an offence, must
be sufficiently proximate to the accomplishment of the intended substantive offence. An act of
the accused is considered proximate, if, though, it is not the last act that he intended to do, is
the last act that was legally necessary for him to do, if the contemplated result is afterwards
brought about without further conduct on his part. The proximity rule was the basis for the
Supreme Court ruling in Abhayanand Mishra v State of Bihar. In this case, the accused applied
to the Patna University for permission to appear as a private candidate in the MA degree
examination. In support of his eligibility, he forwarded certificates showing that he had
obtained his BA degree and that he had been teaching in a certain school. The university
accepted his application and issued him an admission card. However, it was found that he was
not a graduate and the certificates were fake, so the university prosecuted him for forgery and
attempting to cheat. The trial court convicted him only for attempting to cheat the university.
Rejecting the contention of the appellant that he had not crossed the stage of preparation for
‘cheating’ the university, the Supreme Court held the accused guilty of having committed the
offence contrary to sec 420, read with sec 511 of IPC. It ruled that the preparation was
complete when the accused prepared the application for submission to the university, and that
the moment he dispatched it, he had entered the realm of attempt to commit the offence of
cheating. The Apex Court summarized the scope of the law of attempt embodied in sec 511 as:

A person commits the offence of ‘attempt to commit a particular offence’ when:

(i) he intends to commit that particular offence, and

(ii) he, having made preparations and with the intention to commit the offence, does an
act towards its commission, such an act need not be the penultimate act towards

7
P S A Pillai, Criminal Law, 11th Edn., p.185
 Concept of attempt and inchoate crime under IPC

the commission of that offence but must be an act during the course of committing
that offence.

Doctrine of Locus Poenitentiae (time for repentance)-

An act will amount to mere preparation if a man on his own accord gives it up, before the
criminal act is carried out. That is to say, so long as the steps taken by the accused leave room
for a reasonable expectation that he might of his own accord, or because of the fear of the
consequences that might befall him, desist from the contemplated attempt, he will be treated
at the stage of preparation.8 In Malkiat Singh v State of Punjab9 the appellant, a truck driver,
who was carrying paddy out of the jurisdiction of the State of Punjab without a licence, in
violation of the Punjab (Export) Control Order, 1959, was stopped 14 miles away from the
Punjab-Delhi border, and was prosecuted for an attempt to contravene the said order. The
Supreme Court, while allowing the appeal, said that the act of carrying paddy did not amount to
a criminal attempt. The court observed:
The test for determining whether the act of the appellants constituted an attempt or preparation is
whether the overt acts already done are such that if the offender changes his mind, and does not
proceed further in its progress, the acts already done would be completely harmless. In the present case,
it is quite possible that the appellants may have been warned that they had no licence to carry the paddy
and they may have changed their minds at any place between Samalkha Barrier and the Delhi-Punjab
boundary and not have proceeded further in their journey.

The Equivocality Test-

The equivocality test, a continuation of the proximity rule and the doctrine of locus
poenitentiae, suggests that an act done towards the commission of the offence would amount
to an attempt to commit the offence if, and only if, it unequivocally indicates the intention of
the doer to accomplish the criminal object. If what is done indicates beyond reasonable doubt
that the end is towards which it is directed, it is an attempt, otherwise it is a mere preparation.
In other words, the steps taken or the acts done by the accused must speak for themselves.

Impossibility Test-
At one time, it was supposed that it would be no crime if a person attempted to do something,
which in fact was impossible to perform, for it was treated at par with a mere preparation.45
However, it is now perceived that impossibility of performance of an act does not per se render
the attempt to do it an innocent act.10

Attempt under the Indian Penal Code, 1860-

The term ‘attempt’ has nowhere been described in the IPC. Chapter XXIII titled as “Of Attempts
to Commit Offences” does not give any definition of attempt but simply provides for

8
K D Gaur, A Textbook on the Indian Penal Code, 4th Edn., p.844
9
AIR 1970 SC 713
10
R v Brown (1889( 24 QBD 357)
 Concept of attempt and inchoate crime under IPC

punishment for attempting to commit an offence punishable with imprisonment for life or
imprisonment. The term however means the direct movement towards the commission of
crime after necessary preparations have been made.
The IPC has dealt with ‘attempt’ in a specific and general way. It treats a criminal attempt in
four different ways. They are11:

(1) The commission of an offence and the attempt to commit it are dealt with in the same
section and the extent of punishment prescribed is the same for both. The attempts that fall in
this category are:

i. Offences against the State (ss 121, 124, 124-A, 125, 130);

ii. Abetting mutiny (s 131);

iii. Offences against the public tranquility (ss 152 and 153-A);

iv. Offences against public justice (ss 196, 198, 200 and 213);

v. Offences relating to coins and government stamps (ss 239- 241 and 251);

vi. Offences relating to extortion, robbery and dacoity (ss 385, 387, 389, 391, 397 and 398); and

vii. Criminal trespass (s 460).

(2) Attempt to commit specific offences are dealt side by side with the offences themselves, but
separately, and separate punishments are provided for the attempts and the offences. The
offences which fall in this category are:

i. Attempt to commit murder (s 307);

ii. Attempt to commit culpable homicide not amounting to murder (s 308); and

iii. Attempt to commit robbery (s 393).

Murder, culpable homicide and robbery are punishable separately under sections 302,
304 and 392 respectively.

(3) Attempt to commit suicide (s 309).

(4) Attempt to commit offences, for which no specific punishment is provided in the IPC (s 511).

11
P S A Pillai, Criminal Law, 11th Edn., pp 181- 182
 Concept of attempt and inchoate crime under IPC

Scope of Sec 511-

Section 511, which is the solitary provision included in the last chapter ‘Of Attempts to Commit
Offences’ of the Penal Code, makes an attempt to commit an offence punishable. It lays down
general principles relating to attempts in India.12 The scope of the section is, however, limited
only to those attempts where no express provisions have been made by the Code for the
punishment. This section does not apply to attempt to murder which is fully and exclusively
covered by section 307. Also, attempt to commit an offence under special or local law is not
punishable under the Code. The section further leaves unpunished attempts to commit those
offences which are punishable with fine only. The section applies to –

(a) Attempts to commit an offence punishable with imprisonment for life or imprisonment, and

(b) Attempts to cause such an offence to be committed and in such attempt an act is done
towards the commission of the offence.

Punishment for attempt to commit an offence under section 511 may extend up to half of the
imprisonment for life or one-half of the longest term of imprisonment provided for that
offence, or such fine as is provided for the offence, or both.13

Section 511 and Section 307

The offence of attempt has different meanings in Section 511 and Section 307. If specific
provision for attempt to murder has been made in Section 307 there is no sense and also it will
be against the interest of justice if attempt to murder is tried under Section 307/511 IPC.
Section 307 is therefore exhaustive and its scope cannot be narrowed down by Section 511.

Limitations in Section 522 relates to such offences as an attempt to commit murder, or an

attempt to commit suicide or an attempt to obtain illegal gratification which are expressly
punished by other Sections of the Code.

Thus, a case of attempt to murder may fall under section 307 as well as section 511. There is a
conflict of opinion among the high courts regarding this matter.

In the case of R vs Francis Cassidy 1867, Bombay HC held that section 511 is wide enough to
cover all cases of attempt including attempt to murder. It further held that for application of
section 307, the act might cause death if it took effect and it must be capable of causing death
in normal circumstances. Otherwise, it cannot lie under 307 even if it has been committed with
intention to cause death and was likely, in the belief of the prisoner, to cause death. Such cases

12
Koppula Venkat Rao v State of Andhra Pradesh AIR 2004 SC 1874
13
K D Gaur, A Textbook on the Indian Penal Code, 4th Edn., p.849
 Concept of attempt and inchoate crime under IPC

may fall under section 511.

However, in the case of Queen vs Nidha14, Allahabad HC expressed a contrary view and held
that sec 511 does not apply to attempt to murder. It also held that section 307 is exhaustive
and not narrower than section 511.

In the case of Konee 1867, it was held that for the application of section 307, the act must be
capable of causing death and must also be the penultimate act in commission of the offence,
but for section 511, the act may be any act in the series of act and not necessarily the
penultimate act. However, this view has now been overruled by SC in the case of Om Prakash vs
State of Punjab AIR 1967, where the husband tried to kill his wife by denying her food but the
wife escaped. In this case, SC held that for section 307, it is not necessary that the act be the
penultimate act and convicted the husband under this section.

PUNISHMENT FOR ATTEMPT

On conviction of attempt the Court may (with a few exceptions) impose any penalty that would
be within its powers for the completed offence. In practice, however, the punishment for the
attempt will be less than for the consummated crime. If a man shoots at another, intending to
kill him and succeeds, he is sentenced for "life". If he misses, although he could receive a life
sentence, in practice he will be treated much more leniently.

CONCLUSION

To be guilty of an offence, it has to be proven that the defendant has the mens rea and has
committed the actus reus. To be guilty of an attempt, however, requires less, as the essence of
the crime of attempt is that the defendant has failed to commit the actus reus of the full
offence; therefore it only has to be proven that the defendant possessed the mens rea as the
offence has not been committed, even if the defendant intended it to be.
However, there are bound to be conceptual difficulties, especially when the primary offence
embraces different states of mind and its commission includes both result and circumstance
outcomes. Nevertheless, none of this can alter the plain meaning of intent in the imposition of
attempted criminal liability.
Hundreds of offences, including many of the oldest and most serious, prohibit conduct that it
only preparatory, and prohibited because it is only preparatory to the commission of yet other
offences. On the similar lines, forgery is a crime only because it is a preparation for obtaining by
deception or by other similar fraud.

‘A person, who genuinely attempts to commit a criminal offence and fails, still deserves to be punished
just as much as a person who succeeds in committing an offence.’

14
(1891) ILR 14
 Concept of attempt and inchoate crime under IPC

REFERENCES ::
Books referred:

i. PSA PILLAI, Criminal Law (Lexis Nexis, 11th ed.) .

ii. O.P.SRIVASTAVA, Principles of Criminal Law (Eastern Book Company, 6th ed.) .
iii. GLANVILLE WILLIAM, Textbook on Criminal Law (Universal Law Publishing 2nd ed.).
iv. K.D. Gaur, Criminal Law: Cases and Materials (Lexis Nexis, 4th ed.)

Cases referred

Indian cases

i. State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57.

ii. Koppula Venkat Rao v. State of AP, (2004) 3 SCC 602.
iii. Hem Chandra Singh. Emperor, (1926) 27 Cri. LJ 1244 (Pat.).
iv. Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698.
v. T. Munirathnam Reddi, re, AIR 1955 AP 118.
vi. Sagayam v. State of Karnataka, (2000) 4 SCC 454.

Foreign cases

i. Taylor (1978) Crim. L.R. 236.

ii. R. v. Eagelton, (1885) 6 Cox CC 559.
iii. Houghton v Smith, (1973) 3 All ER 1109.

Statutes Referred

i. Indian Penal Code, 1860.

Online databases referred

i. www.manupatra.com
ii. www.jstor.com
iii. www.scconline.com